NY BAR REVIEW TORTS AND TORT DAMAGES LAW COURSE Flashcards
1
Q
what type of negligence jurisdiction is NY?
A
comparative negligence jurisdiction
2
Q
in an action to recover damages for personal injury, injury to property or wrongful death, culpable conduct attributable to claimant or decedent, including contributory negligence or assumption of risk, bars or does not bar recovery?
A
does not bar recovery
3
Q
culpable conduct attributable to claimant or decedent, including contributory negligence or assumption of risk - ____________ amount of damages otherwise recoverable in proportion which culpable conduct attributable to claimant or decedent bears to culpable conduct which caused damages.
A
diminishes
4
Q
what is an affirmative defense to be pleaded and proved by party asserting the defense?
A
culpable conduct attributable to claimant or decedent, including contributory negligence or assumption of risk claimed in diminution of damages
5
Q
when will the defendant be absolved of a duty owed to plaintiff?
A
when plaintiff voluntarily assumes known risk of injury
6
Q
a participant in a sports or recreational activity ______ to the risk which are inherent in and arise out of nature of sport generally and which flow from participation
A
voluntarily assumes and consents
7
Q
generally, violation of state statute that imposes specific duty constitutes what?
A
negligence per se
8
Q
in certain cases of negligence, violation may impose what?
A
absolute liability
9
Q
violation of a municipal ordinance or administrative rule or regulation constitutes some evidence of what?
A
negligence
10
Q
NY has abandoned the common law distinction among the three what?
A
invitee, licensee, trespasser
11
Q
duty owed by owner/occupier of land to whom?
A
person entering premises
12
Q
NY abandoned the common law distinction amongst invitee, licensee, trespasser, and instead, adopted a single standard of _________?
A
reasonable care under the circumstances
13
Q
a landowner MUST act as _______ in maintaining the premises in a _______ condition in view of ________, including __________
A
reasonable person.
reasonably safe.
all circumstances.
likelihood of injury to others, seriousness of the injury, burden of avoiding the risk.
14
Q
NY recreational statute in general obligations law:
A
no duty to keep premises safe for entry or use by others for hunting, fishing, boating, hiking, cross country, skiing, sledding, snowmobile operation or other recreational activities or give warning of any hazardous condition on the property.
15
Q
landowner CAN be found liable for what?
A
willful or malicious failure to guard or warn against dangerous condition or generally for injury suffered where permission to use property was granted for consideration.
16
Q
is there a defense of intra family immunity for non willful torts in NY?
A
NO. NY has abrogated it
17
Q
abrogate
A
repeal, do away with
18
Q
actions bw parents and children are or are not? actionable to same extent that such actions are actionable when brought by non family members
A
ARE actionable
19
Q
a parent’s negligent failure to supervise their child is or is not actionable by the child?
A
is NOT
20
Q
are third party tortfeasors entitled to contribution for parents for liability resulting in part from negligent supervision of child?
A
are NOT
21
Q
when parent breached duty owed to third parties by negligently permitting infant child to use dangerous instrument - parent liable or not?
A
LIABLE. parent’s failure to protect third party from foreseeable harm resulting from child’s improvident use of dangerous instrument, which harm includes third party’s tort liability
22
Q
third party cast in liability for injury to child may seek _________ from parent who has negligently entrusted the child with a dangerous instrument and whose negligence _________ to child’s injury.
A
contribution.
contributed.
23
Q
what is the name of the rule for negligent infliction of emotional distress suffered upon witnessing the injurty of a member of plaintiff’s immediate family?
A
ZONE OF DANGER rule
24
Q
a plaintiff is in the zone of danger if he is exposed to a ____________ due to __________’s conduct
A
unreasonable risk of injury.
defendant.
25
plaintiffin negligent infliciton of emotional distress may recover damages for injuries suffered in consequence of ____ or _____ resulting from contemporaneous observation of ______ or _______ of a member of plaintiff's immediate family, where defendant's same conduct was a substantial factor in causing injury to plaintiff's family member.
shock.
fright.
serious physical injury.
death.
26
where a defendant has unreasonably endangered plaintiff's physical safety, defendant breached duty owed directly to plaintiff, entitling plaintiff to recover ___________ including those suffered as consequence of __________?
all damages sustained.
| witnessing suffering of an immediate family member also injured by defendant's conduct.
27
medical malpractice resulting in miscarriage or stillbirth is a violation of ________ to expectant mother, entitling her to damages for ________, even in absence __________ to mother.
duty of care.
emotional distress.
independent injury.
28
ny's scaffolding law
imposes a duty on contractors, owners, their agents to furnish or erect scaffolding, hoists, stays, ladders, and other devices so as to give proper protection to workers involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.
29
violation of scaffolding law
imposes absolute liability and a plaintiff's comparative fault WON'T reduce recovery.
30
exception to scaffolding law violation for one or two family dwellings if
they contract for do not direct or control the work
31
what type of liability is imposed by the scaffolding law on owners, contractors, and their agents?
strict liability, where a worker sustains an elevation related injury, due to falling object, falling worker, where injury is consequence of absence or improper use of such required safety devices.
32
what requirements are contractors, owners, agents, to comply with?
all areas in which construction, excavation, demolition work is being performed be so constructed, shored, guarded, operated, so as to provide reasonable and adequate protection to persons employed or lawfully frequenting such places.
33
who makes rules to carry out provisions of subdivision 6 in construction into effect?
Commissioner of Labor
34
violation of subdivision 6 construction rules is evidence of what?
negligence
35
dram shop act
creates a cause of action in favor of person injured in person,property, means of support or otherwise by an intoxicated person as against any person who by unlawfully selling liquor or assisting in procuring liquor for such intoxicated person, caused or contributed to such intoxication.
36
what doesthe dram shop act require?
a commercial sale of alcohol.
37
dram shop act - what kind of damages?
actual AND EXEMPLARY
38
what is an unlawful sale re dram shop act?
sale to a minor.
sale to a visibly intoxicated person.
sale to a habitual drunkard - ALCOHOL BEVERAGE CONTROL ACT.
39
whodoes dram shop liability extend to?
person, social host as well, who knowingly causes intoxication in person under 21 by furnishing , assisting in procuring, alcohol to minor.
40
what is FURNISHING re dram shop act?
participation in deliberate plan to furnish alcohol to underage individuals
41
OWNER of vehicle has what type of liability for death or injury to person or property resulting from negligent use or operation of vehicle by person using or operating it with the express or implied permission of owner?
vicarious liability - VEHICLE AND TRAFFIC LAW
42
what is the presumption for vicarious liability of a vehicle owner?
a strong presumption of permissive use that can only be rebutted with substantial evidence sufficient to show driver of vehicle wasnt operating it with express or implied permission of owner.
43
as a general rule, parents ARE or ARE NOT vicariously liable for torts of their minor children?
are NOT
44
parent of infant over 10 yo IS or IS NOT liable for damages caused by infant who willfully , maliciously, or unlawfully damages, destroys, defaces public or private property?
IS
45
parent's liability is limited to how much $ for infant over 10 yo caused by infant who willfully , maliciously, or unlawfully damages, destroys, defaces public or private property?
$5000
46
who may bring an action to recover damages due to injury resulting in decedent's death as against a person who would have been liable to decedent if death had not ensued?
personal representative of decedent's estate
47
what are the damages recoverable in a wrongful death action?
pecuniary losses suffered by those for whose benefit the action is brought
48
the damages in a wrongful death action suit are exclusively for whose benefit?
decedent's distributees.
| to be distributed in accordance with pecuniary injuries suffered by distributees.
49
are proceeds of a wrongful death action assets of the estate to be distributed in accordance with decedent's will or laws of intestacy?
NO
50
plaintiff in a wrongful death case IS or IS NOT to be held to high degree of proof required where injured party can themselves testify and describe the occurence upon which action is based?
IS NOT
51
what is the noseworthy doctrine?
requires jury charge to explain the lesser burden of proof in wrongful death action.
has also been applied in cases of amnesia.
52
in a commercial context, what type of duty exists when relationship bw parties is such that one may justifiably rely upon other for information?
duty to speak with care
53
what is the duty to speak with care?
when relationship bw parties is such that one may justifiably rely upon other for information, in a commercial context
54
what type of liability may be imposed in a commercial transaction where there is a special relationship bw parties, giving rise to exceptional duty regarding commercial speech and justifiable reliance on such speech?
negligent misrepresentation
55
what is negligent misrepresentation?
liability may be imposed in a commercial transaction where there is a special relationship bw parties, giving rise to exceptional duty regarding commercial speech and justifiable reliance on such speech
56
whether the relationship bw parties is such that reliance is justified, with consideration given to whether person making representation held unique or special expertise, whether a special relationship of trust or confidence existed bw parties, whether speaker was aware of use to which information would be put and supplied it for that purpose- is a question of law or fact?
fact
57
an accountant MAY be liable to what type of party?
with whom he or she doesnt have privity of contract where party relies to his detriment on inaccurate financial reports prepared by him
58
in what cases may an accountant be liable to a party with whom he or she doesnt have privity of contract where party relies to his detriment on inaccurate financial reports prepared by him?
accountant was aware that financial reports would be used for particular purpose.
in furtherance of that purpose, known party was intended to rely.
there was some conduct on part of accountant linking him or her to that party, which evinces accountant's understanding of that party's reliance.
59
persons subject to liability for same personal injury, property damage, wrongful death may claim ______ among them - regardless of whether an action has been brought or judgment rendered against person from whom it is sought?
CONTRIBUTION
60
what is the amount of contribution that may be recovered?
excess paid by person seeking contribution over and above his equitable share of judgment recovered by injured party.
61
how are equitable shares determined?
in accordance with relative culpability of each person liable for contribution
62
where 2 defendants are jointly and severally liable, and the percentage of responsibility for damages is determined, what may plaintiff recover?
full amount of damages from either defendants.
if one defendant pays entire judgment, that defendant may recover the percentage of damages responsibility the from the other defendant by way of contribution.
63
ow is a cause of action for contribution asserted?
separate action.
cross claim.
counterclaim.
third party claim in pending action.
64
what is the statute of limitations for a contribution claim?
6 years.
| running from the payment.
65
employer is NOT liable for contribution or common law indemnification to third party when?
when injuries sustained by employee whos actingwithin scope of their employment
66
employer MUST provide compensation to employee in what case?
disability or death of employee from injuries arising out of and in the course of employment regardless of whether employer or employee was negligent, and employee's sole remedy against employer lies in recovery under worker's comp law.
67
employer IS liable for contribution or common law indemnification to third party when?
when injuries sustained by employee whos acting within scope of their employment are GRAVE
68
what is a grave injury?
death.
permanent and total loss of use or amputation of arm, leg, hand, foot.
loss of multiple fingers or toes, loss of index finger.
paraplegia or quadriplegia.
total and permanent blindness or deafness.
loss of nose or ear.
permanent and severe facial disfigurement.
acquired injury to brain caused by external physical force resulting in permanent total disability.
69
what is the effect of a release given to 1 of 2 or more persons liable or claimed to be liable in tort for same injury or wrongful death?
this reduces the claim of the injured party against the other tortfeasors by greatest amount stipulated in the release, amount of consideration paid for release, or amount of released tortfeasor's equitable share of damages.
70
what happens when a tortfeasor obtains release from injured party?
he is relieved of liability for contribution to any other tortfeasor and waives his right to claim contribution from any other tortfeasor.
71
where there is non economic loss in certain personal injury cases, there is what type of liability?
joint and several
72
what is non economic loss?
pain and suffering, mental anguish, loss of consortium
73
a defendant whose proportionate share of fault is fifty percent or less 50% - , is liable for what?
plaintiff's non economic loss only to extent of such proportionate share
74
what type of non economic loss liability has one who is less than 50% liable?
severally
75
if a defendant is insolvent, will plaintiff be able to recover a pain and suffering award?
NO
76
are we to consider the culpable conduct of any person not a party to the action in determining apportionment of fault?
NO, if plaintiff is unable with due diligence to obtain jurisdiction over such person
77
the CPLR precludes what if a plaintiff worker hasnt sustained grave injury?
consideration of employer's culpable conduct in determining any equitable shares
78
limitation of CPLR art 16 on joint and several liability do NOT apply to whom?
a tortfeasor held liable for having violated non delegable duty, such as is imposed on owners and contractors by the labor law or to liability arising under doctrine of respondeat superior.
actions requiring proof of intent, torts like fraud, assault.
to persons held liable by reason of ownership, use or operation of motor vehicle.
in product liability action to the apportioned share of manufacturer where manufacturer is NOT a party to action and plaintiff establishes inability to obtain jurisdiction over manufacturer who would've been liable under doctrine of strict liability.
if plaintiff worker sustained grave injury and sues defendant claimed liable for injury, to extent of equitable share of plaintiff's employer.
to persons held liable for causing injury by having unlawfully released a hazardous substance into the environment.
79
slander
generally not actionable unless plaintiff suffers special damages
80
slander per se - law presumes damages will result from statements in these categories and damages need NOT be alleged or proven
statements charging plaintiff with serious crime.
statements that tend to injure plaintiff in their trade, business, profession.
statements that plaintiff has loathsome disease.
statements imputing unchastity to a woman.
81
libel action
damages are presumed where statement charges a person with committing a serious crime or tends to cause injury to a person's profession or business.
82
common law right to privacy - NY?
NY does NOT recognize such
83
use of advertising or trade purposes of name or picture of any living person without such person's written consent is what?
misdemeanor
84
a person whose name, picture or voice is used for purposes of advertising or trade without their WRITTEN consent, may seek what?
injunction + sue for damages
85
if person's picture is NOT used for trade or advertising purposes, but rather, in connection with reporting of a newsworthy event of a matter of public interest, statutory right of privacy is or is NOT transgressed?
NOT
86
what is a prima facie tort?
infliction of intentional harm, resulting in damage, without excuse or justification, by act or series of acts, which would otherwise be lawful
87
what is an essential element of cause of action for prima facie tort?
special damages
88
what is the NO FAULT LAW?
the comprehensive motor vehicle insurance reparations act
89
what does the comprehensive motor vehicle insurance reparations act provide?
a means of compensating victims of automobile accidents for their economic losses promptly and without regard to fault or negligence
90
every owner's policy of liability insurance issued on a motor vehicle is to provide for what?
the payment of first party benefits to a person injured in the use or operation of the vehicle, other than occupants of another motor vehicle or a motorcycle.
91
in a two car accident, where does the injured party look to?
the insurance on the vehicle they were driving or in which they were riding as a passenger to recover such items of damage as medical expenses and lost wages,regardless of whether or not the accident was caused by the negligence of the driver or the negligence of the driver of another vehicle .
92
in order to find that the injury was caused in the use or operation of a vehicle, the vehicle must be what?
the proximate cause of the injury
93
basic economic loss
insurance law
94
basic economic loss, how much?
up to 50k per person of:
all necessary medical and related expenses w/o liitation as to time, provided need for such services is ascertainable w/in 1 year of date of accident.
loss of earnings, up to 2k per month for up to 3 yrs from date of accident.
all other reasonable and necessary expenses up to $25/day for no more than 1 yr from date of accident
95
what are first party benefits?
payments to reimburse an injured person for basic economic loss, less 20 percent of lost earnings and amounts paid under state or federal law in disability or workers' comp benefits.
insurance law.
96
serious injury determination - which law?
insurance law
97
what is a serious injury?
a personal injury resulting in death, dismemberment, significant disfigurement, fracture, loss of fetus, permanent loss of use of body organ, member, function, or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system, medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.
98
entitlement to and exclusion from coverage for first party benefits - which law?
insurance law
99
every owner's policy of liability insurance issued on a motor vehicle must provide for payment of what?
first party benefits to person injured in use or operation of vehicle, other than occupants of another motor vehicle or motorcycle.
100
insurer may exclude from coverage a person who does what?
intentionally causes his own injury.
is injured as result of operating a vehicle while intoxicated or while his ability to operate the vehicle is impaired by the use of an illegal drug.
is injured while in course of felony, while seeking to avoid lawful arrest, while operating a vehicle in a speed contest or while operating or occupying vehicle known to be stolen.
101
any dispute involving the recovery of first party benefits can be resolved how?
arbitration.
| lawsuit.
102
policy of insurance issued on motorcycle must provide for what?
payment of first party benefits to pedestrian injured by use or operation of motorcycle.
103
no fault coverage is optional for whom?
owner and operator of motorcycle
104
availability of action for non economic loss, which law?
insurance law
105
in any action by a covered person against another covered person for personal injuries arising out of negligence in use or operation of motor vehicle, there is NO right of what?
recovery for non economic loss - pain and suffering
106
what is the exception to no right of recovery for non economic loss - pain and suffering?
serious injury.
| basic economic loss.
107
who is a covered person?
a pedestrian.
an owner injured through the use or operation of a motor vehicle.
an operator injured through the use or operation of a motor vehicle.
an occupant injured through the use or operation of a motor vehicle.
108
in an action by a covered person against a non covered person, such as a manufacturer of a defective seat belt, is basic economic loss recoverable?
YES
109
the insured who paid first party benefits to reimburse the covered person for basic economic loss has what?
a lien against any judgement to the extent of benefits paid.
insurance law.
110
although basic economic loss is not recoverable in an action by a covered person against another covered person, to the extent economic losses exceed basic economic loss, are they recoverable?
YES
111
municipal tort liability. proprietary v. govtl functions.
public entities are immune from what negligence claims arising out of performance of their govtl functions, uncluding police protection, unless what ?
injured person establishes a special relationship with the entity creating a specific duty to protect that individual
112
when the state or other public entity acts in a proprietary capacity as a landowner, it is subject to the same principles of tort law as whom?
a private landowner
113
special relationship, special duty.
| a municipality's duty to provide police protection is a duty owed to whom?
public at large, not a particular individual or class of individuals.
114
municipality's provision of police protection is generally regarded as?
resource allocating function, best left to discretion of policy makers.
115
a municipality may NOT be held liable for injuries resulting from failure to provide what?
police protection
116
exception to the general rule when special relationship exists bw whom?
municipality and claimant.
117
elements of the special relationship bw municipality and claimant are:
assumption by municipality through promises or actions, of affirmative duty to ac on behalf of party who was injured.
knowledge on part of municipality's agents that inaction could lead to harm.
some form of direct contact bw municipality's agents and injured party.
that party's justifiable reliance on municipality's affirmative undertaking.
118
notice of claim requirement- which law?
general municipal law
119
an action may not be maintained against a municipality, fire district, school district to recover damages alleged to have been sustained by reason of negligence or wrongful act of defendant unless what?
notice of claim is served w/in 90 days after claim arises or in case of wrongful death, 90 days from appointment of rep of a decedent's estate.
general municipal law. civil practice and procedure.
